Courtesy Ashgate Publishing

Courtesy Ashgate Publishing | www.ashgate.com

Foundations of Aviation Law

Michael W. Pearson

and Daniel S. Riley

© 2015978-1-4724-4563-6 (paperback) 978-1-4724-4560-5 (hardback)


Chapter 10 Airport Zoning and Noise

Foundations of Aviation Law


Chapter Objectives

After reading this chapter, you should:• understand how zoning

authority is exercised;• understand the concepts

of conforming and nonconforming use;

• understand the benefits of noise exposure mapping to airport operators;

• be familiar with the various tools that an airport operator may use as part of a noise abatement program;

• be familiar with the criteria that the FAA uses to evaluate a proposed noise abatement program;

• be familiar with aircraft noise stages.


Airport Zoning

• Overview of Zoning LawsPrior to zoning, cities had to rely on nuisance laws to curtail hazardous or obnoxious activities within the city proper. New York City enacted the first zoning ordinance in 1916. The ordinance was basic but effective. It created setback requirements, limited the number of tall buildings that could be built in a given area, imposed height limitations, and established zones for certain industries. Herbert Hoover established a zoning commission to develop a uniform zoning act that could be adopted by local governments. Zoning authority is delegated to quasi-judicial government bodies. In a typical scenario, the city council is responsible for enacting the zoning ordinance. A commission, generally called a planning and development commission, is responsible for conducting public hearings and deciding whether to approve applications to rezone land.


Airport Zoning

• Euclidian ZoningEuclidian zoning (named after Euclid v. Amber Realty) uses cumulative zoning. Under this system, areas are zoned for multiple purposes, such as height, area, and use. In the Euclid case, the use category contained six different subcategories of uses.Euclidian zoning also makes use of master plans (sometimes called “comprehensive plans”) in which zoning is established before land is developed, so that a town’s expansion can be theoretically planned in advance.


Airport Zoning

• Compatible Uses Around AirportLand development in the areas surrounding an airport can interfere with airport operations. In order to aid communities that desire to restrict building height and use in the area around an airport, the FAA has published Advisory Circular 150/5190-4A, A Model Zoning Ordinance to Limit Height of Objects Around Airports. The model zoning ordinance establishes several distinct zones around the airport, and within each zone, height limitations apply. The model zoning ordinance also contains use restrictions within the airport zone. The model zoning ordinance also contains procedures regarding nonconforming uses. A nonconforming structure is one that is not permitted under the zoning ordinance, but is nonetheless permitted to remain in place.


Airport Zoning

• Chanceford Aviation Properties, L.L.P. v. Chanceford Township

Board of SupervisorsPennsylvania passed the Airport Zoning Act in 1984. Chanceford Aviation Properties owned a public airport in the Chanceford Township. Its predecessor had repeatedly demanded that the Chanceford Township Board of Supervisors enact airport zoning regulations pursuant to the statute. The Board of Supervisors declined, stating that it already had a zoning ordinance that incorporated FAA standards regarding height obstructions. The predecessor filed suit and Chanceford Aviation Properties was substituted for the plaintiff when it purchased the airport. The trial court sided with the airport, but the Court of Appeals reversed the decision. The airport then appealed to the state Supreme Court. There were two issues on appeal: (1) are all municipalities containing an airport required to enact airport zoning ordinances?; and (2) if airport zoning ordinances are necessary, do the Chanceford Township ordinances comply with the state statute?


Airport Zoning

• Federal Regulation of Airport HazardsFederal Air Rule Part 77 regulates air hazards. It applies to structures, construction, terrain, trees, and equipment. Part 77 requires prior notice to the FAA before construction can begin within specifically outlined distances from an airport or heliport. When the FAA receives the notice for construction, it may issue a “no hazard” finding or conduct an aeronautical study of the effect of the proposed construction. Such studies are conducted by the Office of the Regional Manager, Air Traffic Division.


Airport ZoningThe Condemnation Power

• Source of the Condemnation PowerEminent domain, or condemnation, is an inherent governmental power to seize private property and convert it to public use. In the aviation context, condemnation is often used to seize land near airports in order to construct airport facilities, demolish hazards, or protect against potential damage to private property by airport operations. The Fifth Amendment limits condemnation in three ways. The government may not seize private property unless: (1) the owner is afforded due process; (2) the property is put to public use; and (3) the owner is compensated for the loss of the property.



• Satisfying the Due Process and Public Use RequirementsDue process is satisfied when the owner is given notice of the intended seizure and the opportunity to contest the seizure through a legal process. Over the years, the Supreme Court has significantly expanded the scope of what constitutes “public use” justifying the exercise of eminent domain. At first, public use was interpreted narrowly to mean that the property must be made available to the public. In Berman v. Parker, the Supreme Court upheld the seizure of a “slum” as part of an urban renewal project that involved transferring the seized lands to private developers. Even though the land was not slated for a public use, its seizure was upheld on the basis that the urban renewal project was intended to benefit the public. This concept that “public use” is synonymous with “public benefit” was further expanded.



• Kelo v. City of New LondonThe City of New London approved a development plan that called for the purchase or seizure of 115 homes. The land was then to be transferred to private developers to construct office buildings, restaurants, retails stores, and new homes. The project was intended to benefit a pharmaceutical company that had acquired adjacent land for the construction of a laboratory.The City purchased much of the land in the development zone, but some property owners held out, refusing to sell their homes. The holdouts initiated a lawsuit to enjoin the City from seizing their homes. They argued that the project violated the Fifth Amendment’s requirement that the land be put to a “public use.” They argued that the condemnation was essentially a forced sale between two private parties, since the City intended to seize the land and then immediately transfer it to private developers.



• County of San Diego v. BressiBressi owned two parcels of land near the Palomar Airport in Carlsbad, California. In 1983, the County of San Diego notified Bressi of its intention to use eminent domain to compel her to grant avigation easements over her property. Bressi objected to the amount offered by the County as just compensation, and the matter proceeded to a jury trial. Each party presented testimony of an expert appraiser, but the appraisals differed drastically related to zoning interpretations. The jury determined that Bressi’s damages were $79,658, and Bressi asked for a new trial. The trial judge granted the motion, finding that the “clear weight of the evidence” established that part of the land was zoned for commercial use, was available for commercial use, and should have been valued as commercial land instead of light industrial land. He found that the County’s appraiser was “not credible” when he testified that the County would not approve any commercial development of that land. The judge believed the damages should have exceeded $400,000. The County appealed.


Airport ZoningRegulation of Aircraft Noise

• Noise Exposure MappingAirport operators may, but are not required to, submit noise exposure maps to the FAA Airports Division identifying noise exposure in the areas surrounding an airport. Airports may also request federal funds to assist with noise exposure studies and noise abatement programs under the Airport Improvement Program. Noise exposure maps must provide a five-year projection of flight operations and identify what effect those operations will have on noise exposure. The steps for completing a noise exposure map are outlined in the FAA’s Integrated Noise Model, which is described in 14 CFR Part 150.



• Noise Exposure MappingThe noise exposure map identifies:

– runway locations;– airport boundaries;– flight tracks;– noise contours of LDN 65, 70 and 75 decibels resulting from

aircraft operations, and estimates of the number of people residing within those contours;

– properties that are listed in the National Register of Historic Places or are eligible for inclusion in the Register;

– locations of noise monitoring sites;– streets;– identifiable geographic features.



• City of Atlanta v. WatsonThe City of Atlanta owns and operates Hartsfield International Airport. In the early 1970s, the City opted to participate in a federal noise abatement program. The City conducted a noise exposure study, which resulted in the development and implementation of a land use compatibility plan, known as the City’s Aircraft Noise Exposure Maps & Noise Compatibility Program. As part of its program to reduce nonconforming land uses, the City purchased single-family residences located near Hartsfield with the goal of transitioning these neighborhoods into other land uses that would be more compatible with the airport. Owners of multi-family units within the noise abatement zone filed a lawsuit alleging various claims for relief, including nuisance. The City argued that the nuisance claim was barred by 49 U.S.C. §47506.



• Noise Compatibility ProgramsOnce a noise exposure map has been submitted to the FAA, an airport operator may also submit a proposed noise compatibility program. Noise compatibility programs must be developed in cooperation with the Regional Airports Division of the FAA, and airport operators must give adequate opportunities to public agencies, airport users, and the general public to provide comment on the proposed noise compatibility program. The airport operator must also conduct a public hearing into the proposed compatibility plan before final submission to the FAA. Through the use of its zoning authority, the municipality may also adopt appropriate land use policies to reduce the effect of aircraft noise on individuals.



• Noise Compatibility ProgramsAnother method of reducing the impact of noise on airport neighbors is to require that pilots follow prescribed noise abatement procedures. There are many procedures available to airports, including the preferential use of runways and routes that impact the fewest people. In many cases these procedures require pilots to reduce the use of high thrust whilst over populated areas. It may also involve rerouting traffic to minimize the impact to residential areas. Airports may also impose weight limitations so that aircraft will ascend quicker, using less power, and depart the area faster.



• Regulating Engine NoiseAnother method for mitigating airport noise is by requiring quieter aircraft. The primary noise-producing components of an aircraft are its engines, and so that is where regulatory bodies focus their attention. Aircraft are classified into stages or chapters, depending on if one is referring to their classification under US or international standards. The term used by the FAA is “stage” and the term used by the ICAO is “chapter.” In the US, the stages are listed in 14 CFR Part 36, which provides criteria for measuring engine noise and establishes noise emissions limitations.


Chapter 10 Review Questions

1. Your city uses Euclidian zoning. The use categories include U-1 (single family residences), U-2 (multi-family residences), U-3 (retail), U-4 (light manufacturing), and U-5 (heavy manufacturing). You have purchased a parcel that is zoned as U-4, but you want to build a retail store. Must you apply to have the property rezoned?

2. A small radio station is located along an airport’s flight path. The station has been granted a variance to continue operating its station, even though it is a nonconforming use. The station wants to upgrade its facility and construct a taller antenna. Must it provide notice to the FAA before installing the new antenna?

3. Under what conditions are a nonconforming use permitted in an airport zone?



4. You own a chicken farm. In the past year, operations at the nearby airport have gradually increased. The additional noise has upset your chickens so much that they have stopped laying eggs. The airport submitted a noise exposure map and notice was published in the local newspaper. Can you sue the airport for the loss of revenue?

5. An airport is in the process of submitting a proposed noise abatement program to the FAA. There are two runways on the airport. One leads aircraft over an urban area, while the other uses a flight path that takes aircraft over a rail yard and manufacturing facilities. As part of its noise abatement program, may the airport designate the latter runway as a preferred runway?



6. Which of the following may be considered as part of a noise abatement program: (a) installing acoustic shielding on airport grounds; (b) installing acoustic shielding outside the airport boundary; (c) restricting Stage 1 and 2 aircraft from using the airport at all hours; (d) restricting Stage 3 aircraft from using the airport during the hours of 9 p.m. to 5 a.m. of the following day; and (e) acquiring the land in the most affected areas through eminent domain?

Courtesy Ashgate Publishing | Foundations of Aviation Law Michael W. Pearson and Daniel S. Riley © 2015 978-1-4724-4563-6 (paperback) 978-1-4724-4560-5.

Documents

zoning commission

zoning authority

cumulative zoning

model zoning ordinance

airport zoning compatible

uniform zoning act

airport zone